The Claimant made claims of direct discrimination, indirect discrimination and harassment after he received a final written warning in relation to unauthorised leave of absence. This leave of absence was exacerbated by the fact the Claimant was Polish, his father died in Poland during the pandemic, and travel and forced quarantining in both countries meant that the Claimant was absent from work for longer than he should have been. His claims of indirect discrimination and harassment were successful at the ET and the Respondent appealed against these liability judgments and the subsequent remedy judgment which made an award for aggravated damages arising from the fact that the Claimant’s line manager attended the remedy hearing and was paid for that day.

The EAT allowed the appeal in part. The Respondent’s appeal against the finding in relation to justification in the indirect discrimination claim succeeded. Guidance in Hardys & Hansons plc v Lax [2005] EWCA 846; [2005] ICR 1565 on the need for a critical evaluation of the justification defence was discussed and applied. In relation to the harassment claim, the ET properly found that the making of repeated threats by the line manager was influenced by his view of the Claimant’s conduct in relation to two previous episodes of absence, and that that negative view in turn was influenced by the Claimant’s race. That supported the conclusion that the conduct was “because of”, and hence related to, race. The award of aggravated damages was an error, as, applying the guidance in Zaiwalla & Co v Walia [2002] IRLR 697 this conduct could not have been properly treated as sufficiently egregious to sound in aggravated damages.